Document Type
Article
Publication Date
6-24-2021
Rights
This is an Open Access article, distributed under the terms of the Creative Commons Attribution 4.0 International License, which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
Abstract
This Article aims to reimagine post-national legal solidarity. It does so by bringing debates over Habermasian constitutional theory to bear on the evolving use of mutual recognition and mutual trust in the EU’s Area of Freedom, Security, and Justice (AFSJ), particularly in the context of European asylum law and reforms to the Dublin Regulation. Insofar as critiques of Habermasian “constitutional patriotism” apply to the principle of mutual trust, the Article suggests why post-national solidarity requires fallibilism and dynamic responsiveness that exceed formalized rules of forbearance and respect.
On this revised view, legal solidarity guarantees a particular form of adjudication through which individual litigants in a particular case challenge the transnational structural conditions that give rise to individual harm. Because it acknowledges that violations of individual rights are always potentially or in part the result of a collective systemic failure, this conception of solidarity restores meaning to the transformative “transfer” of sovereignty that post-national law had promised. In the field of asylum law, I detail how this application of solidarity would offer a much-needed corrective to structural imbalances in the existing Dublin regime. I conclude with reflections on the principle’s application in additional fields of EU law, as well.
Publication Title
German Law Journal
First Page
506
Last Page
533
Recommended Citation
Paul Linden-Retek,
The Refugees We Are: Solidarity, Asylum, and Critique in the European Constitutional Imagination,
22
German L.J.
506
(2021).
Available at:
https://digitalcommons.law.buffalo.edu/journal_articles/1015